SLATON et al. v. PARIS ADULT THEATRE I et al.
26631
Supreme Court of Georgia
DECIDED OCTOBER 30, 1973.
231 Ga. 312 | 201 S.E.2d 456
INGRAM, Justice.
” ‘It is a well-settled rule of practice and procedure that where one, as here, has been convicted of crime, habeas corpus cannot be used as a substitute for appeal or other remedial procedure for the correction of errors and irregularities; nor can it be used as a second appeal for such purpose. It is an appropriate remedy only when the judgment or sentence under which applicant is being restrained is not merely erroneous but is absolutely void.’ Ferguson v. Balkcom, 222 Ga. 676, 677 (151 SE2d 707) and cit.’ Bonner v. Smith, 226 Ga. 250 (3) (174 SE2d 438); Bush v. Chappell, 225 Ga. 659, 660 (171 SE2d 128).” Poss v. Smith, 228 Ga. 168 (184 SE2d 465).
As was held in Brackett v. State, supra, the conduct of the prisoner, who was represented by employed counsel, in waiting until after the verdict of guilty was received served as a waiver of the grounds of attack upon the trial procedure followed by the trial court, and the judgment remanding the prisoner to custody shows no reversible error.
Judgment affirmed. All the Justices concur.
SUBMITTED JULY 13, 1973 — DECIDED SEPTEMBER 6, 1973.
Lloyd E. Grimes, for appellant.
Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.
26631. SLATON et al. v. PARIS ADULT THEATRE I et al.
INGRAM, Justice. This case comes before the court again following decision and remand by the United States Supreme Court in Paris Adult Theatre I v. Slaton, 413 U. S. 49 (93 SC 2628, 37 LE2d 446). It began December 28, 1970, when the District Attorney of the Atlanta Judicial Circuit and the Solicitor of the Criminal Court of Fulton County filed separate complaints in the Superior Court of Fulton County against Paris Adult Theatres I and II and certain named individuals, praying for a rule nisi to require the defendants to show cause why the motion picture films “It All Comes Out in the End” and “Magic Mirror” should not be declared obscene and enjoined from exhibition. A temporary
After viewing the motion pictures and hearing the evidence, the trial court rendered the following judgment: “The state contends that the motion pictures under review in the above actions are obscene. The titles of the films are, ‘It All Comes Out in the End’ and ‘Magic Mirror.’ Assuming that obscenity is established by a finding that the actors cavorted about in the nude indiscriminately, then these films may fairly be considered obscene. Both films are clearly designed to entertain the spectator and perhaps, depending on the viewer, to appeal to his or her prurient interest. The portrayal of the sex act is undertaken; but the act itself is consistently only a simulated one if, indeed, the viewer can assume an act of intercourse or of fellatio is occurring from the machinations which are portrayed on the screen. Each of the films is childish, unimaginative, and altogether boring in its sameness. It appears to the court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible. It is the judgment of this court that the films, even though they display the human body and the human personality in a most degrading fashion, are not obscene. The actions against the defendants, therefore, are dismissed. This 12th day of April, 1971. Jack Etheridge, Judge Superior Court of Fulton County Atlanta Judicial Circuit.”
On appeal from the above order, this court unanimously reversed the judgment of the trial court and held that the films were hard-core pornography and that showing of these films should have been enjoined in that their exhibition to consenting adults
On August 27, 1973, we granted counsel for opposing sides and the Attorney General, leave to submit briefs to assist this court in assessing the effect of these opinions upon the earlier judgment of this court and upon the legislative enactments of this state on obscenity.
I.
Overbreadth.
It is now firmly established that “obscenity” is not protected by the Free Speech Clause of the First Amendment and may be regulated by the state. Miller v. California, 413 U. S. 15, supra; Roth v. United States, 354 U. S. 476 (77 SC 1304, 1 LE2d 1498) (1957); Chaplinsky v. New Hampshire, 315 U. S. 568 (62 SC 766, 86 LE 1031) (1942). In order to maintain the integrity of the First Amendment and to prevent incursions into areas of protected speech and expression, the United States Supreme Court has made it necessary, however, that regulatory statutes be carefully limited to define specific sexual conduct to whose depiction and description they apply. Miller v. California, 413 U. S. 15, supra. In Miller and in United States v. 12 200-Ft. Reels of Super 8 mm. Film, 413 U. S. 123, supra, the court made clear that this statutory requirement could be met by specific legislation, as e.g.,
In Miller, the court settled upon minimal, factual guidelines for describing obscene material. The constitutional test was whether: “(a) [T]he average person, applying ‘contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, (c) the work, taken as
The definition of obscenity under Georgia statutory law is as follows: “Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters.”
We, therefore, conclude that the Georgia statute has been specifically delineated in a manner consistent with the new Miller standards. In rejecting counsel‘s constitutional challenge to the statute we therefore reaffirm our prior ruling that it is not overly broad or vague in definition. Gornto v. State, 227 Ga. 46 (178 SE2d 894) (1970). See Gable v. Jenkins, 309 FSupp. 998 (N. D. Ga. 1969), aff‘d. 397 U. S. 592 and noted in Paris Adult Theatre I v. Slaton, 413 U. S. 49, supra, n. 1.
II.
Due Process.
The appellees contend that the Georgia statute as construed cannot be applied retroactively and that any detriment found in the Miller guidelines, as opposed to the prior Memoirs guidelines (Memoirs v. Massachusetts, 383 U. S. 413 (86 SC 975, 16 LE2d 1) (1966)) upon which
The reply to this argument is that the Georgia statutory definition has been previously authoritatively construed by this court to include those standards for obscenity as permitted by Miller. In addition, the Miller guidelines allow a state to regulate material lacking in serious literary, artistic, political or scientific value, whereas under the Memoirs test (
In summary, this court has previously contrued the statutory definition of obscenity in a manner authorized by the new Miller guidelines and therefore has not judicially enlarged
III.
Standards.
In Miller v. California, 413 U. S. 15, supra, the Supreme Court clarified the “community standards” to which the obscenity guidelines were to apply, disavowing that of the nationwide community in favor of that of the state. In view of Miller and of the constitutional responsibility placed upon this court to conduct independent appellate determinations of the issue of obscenity vel non, we hold the “community” by which the standards for obscenity are gauged is that community or polity which is the State of Georgia.
Secondly, it is also no longer necessary in cases where the materials themselves are available for inspection by the finder of fact that expert testimony be produced on behalf of the prosecution. Paris Adult Theatre I v. Slaton, 413 U. S. 49, supra. See, also, United States v. Groner, 479 F2d 577 (5th Cir. 1973).
Thirdly, the Supreme Court has rejected the ruling of the trial court in Paris Adult Theatre I v. Slaton, supra, that exhibition of obscene material or film to consenting adults is constitutionally permissible. The court stated, “We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court.”
And finally, under the standards announced by the Supreme Court in Miller, inhering in prior judicial decisions of this court, and taken in conjunction with
IV.
Conclusion.
In the instant case, the films “It All Comes Out in the End” and “Magic Mirror” depicted actors cavorting indiscriminately in the nude, in a manner designed to appeal to the prurient interests; they depicted simulated acts of intercourse and fellatio. This court has already found these films obscene. In Slaton v. Paris Adult Theatre I, 228 Ga. 343, 347 (185 SE2d 768) (1971), we said: “The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character.”
We affirm our original decision. The court has again conducted an independent appellate review of the films, and they have been exhibited to those members of the court now sitting who did not participate in the prior ruling. These members have likewise concluded that the films are obscene under the above standards. The judgment of the trial court is, therefore, reversed with direction that it enter an order permanently enjoining the exhibition of the films.
Judgment reversed with direction. All the Justices concur, except Gunter, J., who concurs specially.
DECIDED OCTOBER 30, 1973.
Carter Goode, W. Baer Endictor, Thomas E. Moran, Hinson McAuliffe, Thomas R. Moran, for appellants.
D. Freeman Hutton, Gilbert H. Deitch, Robert Eugene Smith, for appellees.
Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, B. Dean Grindle, Deputy Assistant Attorney General, amicus curiae.
GUNTER, Justice, concurring specially. I concur in the court‘s judgment of reversal today solely because I consider that I am bound by the majority decisions of the Supreme Court of the United States in Paris Adult Theatre I v. Slaton, supra, and Miller v. California, supra, rendered June 21, 1973.
Were it not for those two recent decisions I would hold that the Georgia statute (
While I do not consider the First Amendment to be absolute, it is my view that First Amendment proscriptions, made applicable to Georgia by the Fourteenth Amendment, do not permit the state to suppress expression unless such suppressed expression is clearly defined by the state so that a reasonable man can see the line of demarcation between protected expression and suppressed expression. The definition of “obscene materials” that may be suppressed by the state, contained in the present Georgia statute, does not, to my mind, come even close to establishing that line of demarcation. A reasonable man or, for that matter, seven supposedly reasonable judges, utilizing objective criteria which in the last resort end up being really subjective criteria, cannot distinguish constitutionally protected material from material that is unprotected by the First Amendment.
The net result of the Miller (obscenity concept) case is that this court acts as a seven-man board of censors in the State of Georgia, and the Supreme Court of the United States acts as a nine-man board of censors throughout the nation, with a majority of this court determining what is constitutionally protected or unprotected in Georgia and a majority of the Justices of the Supreme Court of the United States determining what is constitutionally protected or unprotected at the national level. As Mr. Justice Brennan so aptly put it in his dissenting opinion in Paris Adult Theatre I: “The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this court, applying inevitably obscure standards, have pronounced it so.” See also the decision of this court in Jenkins v. State, 230 Ga. 726 (199 SE2d 183) (1973).
However, because of the majority decisions in Miller v. California and Paris Adult Theatre I v. Slaton, supra, I am required to hold that the present Georgia statute defining obscene material that may be suppressed by the state is not a constitutionally vague and over broad statute.
I therefore concur in the judgment of reversal.
GUNTER, Justice.